People v. Morones CA2/8

Filed 2/9/22 P. v. Morones CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B312630
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA057522
v.
CHRISTIAN MORONES,
Defendant and Appellant.
APPEAL from an order of the Superior Court for the
County of Los Angeles. Daniel J. Lowenthal, Judge. Affirmed.
Sandra Gillies, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Daniel C. Chang and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
SUMMARY
Defendant Christian Morones appeals from the denial of
his resentencing petition. He was convicted of murder under the
provocative act murder doctrine, after one of his accomplices in a
robbery was killed by the victim of the robbery. He contends he
was convicted under a theory “under which malice is imputed to a
person based solely on that person’s participation in a crime”
(Pen. Code, § 1170.95, subd. (a)(1)), and therefore is eligible for
resentencing. (All further statutory references are to the Penal
Code.)
Defendant is mistaken. There was no imputation of malice.
Defendant was convicted of murder based on his own intentional
commission of a provocative act, while personally harboring the
required mental state of implied malice. The trial court’s order is
affirmed.
FACTS
The following facts concerning the killing are an
abbreviated version of those recited in our opinion in People v.
Morones (Feb. 9, 2012, B225231) [nonpub. opn.] 2012
Cal.App.Unpub.Lexis 1014 at pages *2–5.
Albert Bachelier lived in a trailer on his father’s property.
His father collected firearms and owned many weapons, some of
which were housed in the trailer. Gary Rodela and Ursula
Gomez arrived at the trailer in the early morning hours of
June 22, 2003. Bachelier was there with two other people, and
admitted Rodela and Gomez to the trailer. Once inside, Rodela
pulled a gun and pointed it at Bachelier. Shortly afterward,
defendant entered the trailer, and both defendant and Rodela
yelled at Bachelier, asking him where he stored the guns and
warning they would kill him if he lied. Bachelier said he had no
guns, but in fact he had a loaded handgun hidden on his person
and other loaded guns hidden around the trailer. Defendant and
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Rodela, both of whom had weapons, ordered Bachelier and the
others under a table under threat of death. They searched each
of them separately. They punched, kicked and “pistol-whipped”
Bachelier, who managed to keep his handgun hidden during the
search.
Defendant then searched the trailer and found a shotgun,
after which Rodela searched the trailer and found another gun.
Rodela told defendant, “I found one. That mother fucker lied to
me. Pull his ass out and kill him.” Defendant turned to
Bachelier and pointed his gun at Bachelier. Bachelier thought he
would be shot. Bachelier shot defendant and Rodela. One of the
others present testified that immediately before Bachelier shot
them, defendant and Rodela were threatening Bachelier. When
Bachelier initially discharged his weapon, defendant was
pointing his weapon directly at Bachelier.
Rodela later died of gunshot wounds.
Defendant was charged with the first degree murder of
Rodela, as well as other offenses and enhancements. (People v.
Morones, supra, 2012 Cal.App.Unpub.Lexis 1014 at p. *5.)
Ursula Gomez was also charged. They were tried together and
convicted of all counts. They appealed, and this court reversed
the conviction for first degree murder. (People v. Gomez (Oct. 30,
2006, B180504) [nonpub. opn.] 2006 Cal.App.Unpub.Lexis 9734.)
Gomez pled no contest to voluntary manslaughter, and defendant
was tried a second time. (People v. Morones, supra, at p. *6.)
In his second trial, the jury again convicted defendant of
first degree murder. In defendant’s appeal, we concluded his
conviction based on the provocative act murder doctrine had to be
reduced to second degree murder. (People v. Morones, supra,
2012 Cal.App.Unpub.Lexis 1014 at pp. *1, 8–15.) The trial court
resentenced defendant, defendant appealed the sentence, and we
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affirmed the judgment. (People v. Morones (July 15, 2013,
B245343) [nonpub. opn.] 2013 Cal.App.Unpub.Lexis 4919.)
On February 8, 2019, defendant filed a petition for
resentencing under section 1170.95. The petition stated, among
other things, that defendant was convicted of first or second
degree murder pursuant to the felony murder rule or the natural
and probable consequences doctrine, and could not now be so
convicted because of the changes made to sections 188 and 189,
effective January 1, 2019.
The trial court ordered the district attorney to respond to
the petition, and appointed counsel for defendant.
On February 26, 2021, the trial court denied the petition.
The court stated that, “as the Second District has made clear over
the last several months on multiple occasions, provocative act
murder does not come within the ambit of [section] 1170.95. It is
not considered a subset of natural and probable [consequences],
or felony murder.”
Defendant filed a timely appeal. Both parties filed requests
for judicial notice. Defendant requested judicial notice of the jury
instructions showing defendant was convicted on a provocative
act theory, and we grant that request. The Attorney General
requested judicial notice of the appellate record in defendant’s
direct appeal, including our appellate opinion. We grant judicial
notice of our opinion, but otherwise deny the request as
unnecessary.
LEGAL BACKGROUND
The Legislature enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.), effective January 1, 2019, amending the felony-
murder rule and the natural and probable consequences doctrine
for murder. The bill’s purpose was “to ensure that murder
liability is not imposed on a person who is not the actual killer,
did not act with the intent to kill, or was not a major participant
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in the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill stated
that “[a] person’s culpability for murder must be premised upon
that person’s own actions and subjective mens rea.” (Stats. 2018,
ch. 1015, § 1, subd. (g).)
Senate Bill No. 1437 amended the definition of malice in
section 188, and narrowed the class of persons liable for felony
murder in section 189. (Stats. 2018, ch. 1015, §§ 2 & 3.) The
amended definition of malice includes a provision stating that
“[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018,
ch. 1015, § 2.)
Senate Bill No. 1437 also added section 1170.95, providing
a procedure under which a person convicted of felony murder, or
murder under a natural and probable consequences theory, could
petition the sentencing court to have the murder conviction
vacated and to be resentenced on any remaining counts.
(Stats. 2018, ch. 1015, § 4.) Among the applicable conditions was
that the petitioner “could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (Ibid.)
Effective January 1, 2022, the Legislature amended
section 1170.95 by Senate Bill No. 775 (2021–2022 Reg. Sess.).
The Legislature stated that the amendment “[c]larifies that
persons who were convicted of attempted murder or
manslaughter under a theory of felony murder and the natural
and probable consequences doctrine are permitted the same relief
as those persons convicted of murder under the same theories.”
(Stats. 2021, ch. 551, § 1, subd. (a).) The amendment also
codified certain holdings in People v. Lewis (2021) 11 Cal.5th 952;
reaffirmed the burden of proof at a resentencing hearing; and
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addressed the evidence a court may consider at a resentencing
hearing. (Stats. 2021, ch. 551, § 1, subds. (b)–(d).)
As amended, section 1170.95 now states, as relevant here,
that “[a] person convicted of felony murder or murder under the
natural and probable consequences doctrine or other theory under
which malice is imputed to a person based solely on that person’s
participation in a crime, . . . may file a petition” for resentencing
under the specified conditions (id., subd. (a), italics added),
including that the petitioner “could not presently be convicted of
murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019” (id., subd. (a)(3)). The
italicized language is virtually identical to the provision added to
the Penal Code’s definition of malice in 2019. (§ 188, subd.
(a)(3).)
DISCUSSION
It is undisputed that defendant was convicted of murder on
a provocative act theory. The provocative act doctrine is
described in many cases, including People v. Gonzalez (2012)
54 Cal.4th 643 (Gonzalez).
“When someone other than the defendant or an accomplice
kills during the commission or attempted commission of a crime,
the defendant is not liable under felony-murder principles but
may nevertheless be prosecuted for murder under the provocative
act doctrine. The provocative act doctrine is to be distinguished
from the felony-murder rule. ‘A provocative act murder case
necessarily involves at least three people—in our case, the
perpetrator of the underlying offense, an accomplice, and a victim
of their crime. [Citation.]’ [Citation.] A variation on the law of
transferred intent, the provocative act doctrine holds the
perpetrator of a violent crime vicariously liable for the killing of
an accomplice by a third party, usually the intended victim or a
police officer. [Citations.] Under the felony-murder rule, if an
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accomplice is killed by a crime victim and not by the defendant,
the defendant cannot be held liable for the accomplice’s death.
[Citations.] The provocative act doctrine is not so limited. Under
the provocative act doctrine, when the perpetrator of a crime
maliciously commits an act that is likely to result in death, and
the victim kills in reasonable response to that act, the
perpetrator is guilty of murder. [Citations.] ‘In such a case, the
killing is attributable, not merely to the commission of a felony,
but to the intentional act of the defendant or his accomplice
committed with conscious disregard for life.’ ” (Gonzalez, supra,
54 Cal.4th at pp. 654–655.)
Gonzalez further explains: “A murder conviction under the
provocative act doctrine thus requires proof that the defendant
personally harbored the mental state of malice, and either the
defendant or an accomplice intentionally committed a provocative
act that proximately caused an unlawful killing. [Citations.] A
provocative act is one that goes beyond what is necessary to
accomplish an underlying crime and is dangerous to human life
because it is highly probable to provoke a deadly response.
[Citations.] . . . Malice will be implied if the defendant commits
a provocative act knowing that this conduct endangers human
life and acts with conscious disregard of the danger. [Citations.]”
(Gonzalez, supra, 54 Cal.4th at p. 655, italics added.)
Here, the jury was properly instructed on all the elements
the prosecution had to establish in order to prove defendant was
guilty of murder under the provocative act doctrine, and
defendant does not suggest otherwise. Rather, defendant
contends the formulations of the doctrine in Gonzalez and other
cases “show the doctrine is a way of imputing malice rather than
a determination the defendant acted with implied malice.”
Defendant is mistaken.
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Gonzalez is clear, and nothing in its discussion suggests the
provocative act doctrine “is a way of imputing malice.” Malice is
not “imputed” when the defendant must “personally harbor[] the
mental state of malice,” intentionally commit a provocative act,
know that his conduct endangers human life, and consciously
disregard the danger. (Gonzalez, supra, 54 Cal.4th at p. 655.)
That is implied malice, and nothing in section 1170.95 has
eliminated implied malice as a proper basis for a murder
conviction.
The Penal Code merely prohibits imputing malice to a
defendant “based solely on [the defendant’s] participation in a
crime.” (§ 188, subd. (a)(3), § 1170.95, subd. (a).) Plainly,
defendant’s murder conviction was not “based solely on [his]
participation in a crime.” Malice was implied based on
defendant’s own provocative act—an act “beyond what is
necessary to accomplish an underlying crime” (Gonzalez, supra,
54 Cal.4th at p. 655)—and on defendant’s mens rea while doing it
(“knowing that [his] conduct endanger[ed] human life and
act[ing] with conscious disregard of the danger” (ibid.)). That is
implied malice, not an imputation of malice based only on
participation in a crime.
As the trial court observed, appellate courts have uniformly
rejected the argument defendant makes here, which is based on
the similarity of language in materially different theories of
murder liability. (See, e.g., People v. Mancilla (2021)
67 Cal.App.5th 854, 867–868 (Mancilla); see id. at p. 868
[“section 188, subdivision (a)(3), which provides malice shall not
be imputed to a person based solely on his or her participation in
a crime, does not affect the theory of provocative act murder”].)
Mancilla describes the language similarities and doctrinal
differences in detail, and we need not reiterate them here. (Id. at
pp. 867–868; see, e.g., id. at p. 868 [“Unlike natural and probable
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consequences liability for murder, which contained no
requirement of proof of malice [citation], malice aforethought—
conscious disregard for life—is a necessary element of a
conviction for provocative act murder, as [the defendant’s] jury
was instructed.”].)
Defendant argues that excluding provocative act murder
from the ambit of the resentencing statute violates equal
protection principles. It does not, because “offenders who acted
with malice and those who did not are not similarly situated for
purposes of section 1170.95.” (Mancilla, supra, 67 Cal.App.5th at
p. 870.)
Because defendant was convicted of murder under a theory
requiring proof of malice aforethought, he is ineligible for
resentencing as a matter of law.
DISPOSITION
The order is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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